The Commission for Conciliation, Mediation and Arbitration (CCMA) has ruled that the dismissal of an employee for refusing to be vaccinated against Covid-19 was fair.

The commission ruled that she could be dismissed because she had “refused to participate in the creation of a safe working environment”.

The ruling, by Gauteng commissioner Lungile Matshaka, is the first to come to light on the issue of workplace mandatory vaccine policies.

Goldrush Group business and training officer Theresa Mulderij, was appealing against her dismissal for “incapacity”. She wanted to be either reinstated or fully compensated.

Read the ruling.

At the hearing, company representatives explained the steps leading up to the adoption of its mandatory workplace vaccination policy.

They said consultations had been held with unions and employees over a three-month period. Staff had been given an overview of the benefits of vaccination. Specialists, including a doctor, traditional healer, virologist and a human rights commissioner had been made available to answer questions.

The policy included a provision for exemption.

Mulderij applied for exemption but was turned down.

According to Matshaka’s ruling, she had first attempted to get a medical exemption, but no doctor had been willing to assist her. She then relied on her constitutional right to bodily integrity.

This application was turned down by the exemption committee. “The committee identified her as a high-risk individual who interacts with colleagues daily whilst on duty in confined, uncontrollable spaces. This, according to the committee, put her at risk and exposes other colleagues to risk,” the commissioner said.

Mulderij lodged an internal appeal.

The company rejected her appeal, taking into account a memo written by Deputy Judge President Roland Sutherland to colleagues in which he stated:

“There has been, as yet, only mild protest that this (no vaccination no entry policy) violates freedom of choice … in my view, this is the wrong question. The proper question is whether or not an individual is sufficiently civic-minded to appreciate that a duty of care is owed to colleagues and others with whom contact is made to safeguard them from harm. If one wishes to be an active member of a community then the incontrovertible legitimate interest of the community must trump the preferences of an individual.”

Commissioner Matshaka said he had listened carefully to what Mulderij had said at the CCMA hearing: that she had a constitutional right to bodily integrity; that she felt extreme social pressure and emotional discomfort about deciding between her livelihood and accepting the vaccine under current conditions; and that she did not trust the vaccine and had a personal fear as to what it might do to her.

She had said since the beginning of lockdown, she had strictly followed Covid protocols, both general protocols and those introduced by the company. To her knowledge, she had not yet been infected or infected anyone else.

“She is aware that it has been confirmed by the World Health Organization that the vaccine does not stop the spread or contraction of the virus, but only serves to minimise the severity of symptoms. She does not believe that this vaccine is for the greater good or wellbeing of people but only for the good of the individual themselves,” the commissioner said. [Vaccines reduce the risk of infection, the time one is symptomatic and consequently the risk of infecting others. — Editor]

He said the mandatory workplace vaccination policy, from its drafting up to its implementation, had followed all the crucial steps.

He said after considering the versions of the parties, and influenced by Judge Sutherland’s pronouncements, and his own sense of fairness, he could only conclude that Mulderij was “permanently incapacitated” on the basis of her decision not to get vaccinated and her refusal to participate in the creation of a safe working environment. DM

First published by GroundUp.

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